Protecting the nation while upholding our civil liberties

Geoffrey R. Stone

On Aug. 27, President Barack Obama met in the White House Situation Room with the five members of his newly appointed Review Group on Intelligence and Communications Technologies.

The members were Richard Clarke, a former member of the National Security Council; Michael Morell, a former deputy director and acting director of the Central Intelligence Agency; Cass Sunstein, a former director of the Office of Information and Regulatory Affairs; Peter Swire, a former chief counselor for privacy in the Office of Management and Budget; and me.

The immediate backdrop for the president's appointment of the review group was a series of unauthorized disclosures of classified information involving foreign intelligence surveillance by the National Security Agency. Our charge was to submit a formal report to the president by Dec. 15, advising him on how the United States can better employ its foreign intelligence surveillance capabilities in a way that effectively protects our national security, while at the same time respecting our deep national commitment to privacy and civil liberties, and maintaining public trust in the intelligence community.

By the time we delivered our 300-page report, "Liberty and Security in a Changing World," to the president (a day early), we had met with an extraordinary array of individuals and organizations, including not only the president, but also National Security Adviser Susan Rice; NSA Director Keith Alexander; a dozen members of the Senate and House Intelligence and Judiciary committees; high-level officials in the NSA, the CIA and the FBI; representatives of the Departments of State, Defense, Homeland Security, Commerce and Treasury; the former chief judge of the Foreign Intelligence Surveillance Court; representatives of the European Union; representatives of more than 25 private organizations ranging from the American Civil Liberties Union, Human Rights Watch and the Reporters Committee for Freedom of the Press, to Google, Facebook and Yahoo; and many, many more.

All members of the review group had "top secret" clearances, and during the course of our work we had full access to highly classified material. Although none of that information appears in our report, which we were determined to make available to the American people, much of it informed our understanding and our recommendations.

In the most general terms, we concluded that, although the United States and its allies continue to face numerous and serious threats to our national security — including threats from international terrorism, and although robust foreign intelligence collection continues to be essential if we are to protect ourselves against such threats, we had reached a point where it was necessary to recalibrate our policies and priorities in order to better preserve our nation's core commitment to the values of personal privacy and individual freedom.

To that end, we recommended to the president 46 specific reforms that, in our judgment, will reinforce our most fundamental values without undermining what the intelligence community needs to do to keep our nation safe. Among our recommendations are proposals to eliminate the program in which NSA gathers and stores massive amounts of metadata about the phone calls of Americans; provide greater protection to the legitimate privacy interests of non-Americans; establish a public advocate who will represent the interests of privacy and civil liberties in proceedings before the Foreign Intelligence Surveillance Court; require the FBI to obtain a judicial order before using national security letters to obtain information about individuals from third parties, such as telephone companies, banks and credit card companies; require much greater transparency and public accountability about the operations of unclassified programs; and create a high-level oversight board to review questions of privacy and civil liberties in the realm of foreign intelligence.

Many may wonder: Why did Obama feel the need to appoint this group in the first place? After all, there are plenty of officials and agencies in government already that worry over these issues. I do not know the answer, but I can speculate about it.

The use of government surveillance to protect the nation against terrorist attack is deeply polarizing. On the one hand, there are those who fervently defend everything the intelligence community does. How, they ask, in the light of 9/11, can anyone want to handcuff the intelligence community in its critical effort to protect our nation against potentially catastrophic terrorist attacks? It is reckless and irresponsible, they charge, for anyone to restrain the government from taking every possible measure to help to keep us safe. Have you forgotten the lessons of history?

On the other side, the critics of the NSA and of what they see as rampant and unrestrained government spying charge that any intrusion into individual privacy is a fundamental infringement of core American values. The NSA, they insist, is a rogue agency that is trampling on core American freedoms. No government agency can be trusted! Have you forgotten the lessons of history?

The intense polarization in these positions, so typical of American political discourse today, is destructive of reasoned decision making. I believe the president appointed the review group in an effort to cut through the hysterical rhetoric and overblown claims of the competing sides and to get sound and dispassionate guidance on how to think sensibly about these profoundly difficult and important issues.

By bringing together five highly experienced individuals with widely diverse backgrounds, experiences, perspectives and values, the president wanted a clear-eyed, tough-minded, fiercely independent evaluation of what is best for the nation.

And that is what he got. The five of us worked tirelessly to understand the legal principles, the economic ramifications, the privacy and civil liberties consequences, the procedural issues, the foreign relations implications, the technological complexities, and the national security concerns that are implicated by these issues. Not surprisingly, there are no easy answers.

But despite our widely divergent views, approaches and presumptions, the review group unanimously agreed on every one of our 46 recommendations. We were able to do this because of the mutual respect we developed for one another, because of our appreciation of our often divergent perspectives, because we were committed to thinking rigorously, objectively and clearly as a group, and because we were determined to put the facts together with the values in a way that would best serve the needs and interests of the American people — period.

We did not care what the White House wanted, what the intelligence community wanted, or what the civil libertarians wanted. We delivered, we believe, what the president wanted: a careful, honest, balanced and independent evaluation of the tough realities of protecting the nation through effective intelligence collection while simultaneously upholding the liberties that are at the very core of our national identity.

We wrote our report not only for the president, but for the American people. If you want to explore our recommendations and reasoning for yourself, you can find our report here: chicagotribune.com/reviewgroup